Racial and Religious Hatred Bill - Standing Committee E

[Mr. Roger Gale in the Chair]

Racial and Religious Hatred Bill

Roger Gale: Morning, ladies and gentlemen. This is an unexpected pleasure. Hon. Members may remove their jackets if they wish to do so. I notice that one or two have pre-empted the Chairman’s decision on that.
Clearly, the first set of amendments is massive and will generate a fairly wide-ranging debate. On that basis, those who know my practice in the Chair will understand that I shall not expect to have a schedule stand part debate at the end, so if you have something to say, say it.

Schedule - Hatred against persons on racial or religious grounds

Dominic Grieve: I beg to move amendment No. 8, in schedule, page 2, line 19, leave out sub-paragraph (3).

Roger Gale: With this it will be convenient to discuss the following amendments:
No. 34, in schedule, page 2, line 19, leave out
‘For subsection (1)(b) substitute—
‘(b)’
and insert
‘After subsection (1)(b), insert “, or
(c)’.
No. 9, in schedule, page 2, line 21, leave out ‘likely’ and insert ‘intended’.
No. 15, in schedule, page 2, line 22, leave out
‘“are (or it is) likely to”’
and insert
‘“will”.’.
No. 35, in schedule, page 2, line 22, leave out ‘“racial or”.’.
No. 53, in schedule, page 2, line 22, leave out ‘“or religious”’.
No. 48, in schedule, page 2, line 23, at end insert
‘or
(c)having regard to all the circumstances the words, behaviour or material are (or is) liable to be heard or seen by any person in whom they are (or it is) likely to stir up racial hatred.”.’.
No. 54, in schedule, page 2, line 23, at end insert
‘or
(c)having regard to all the circumstances the words, behaviour or material are (or is) intended to be heard or seen by any person in whom they are (or it is) likely to stir up religious hatred.”.’.
No. 71, in schedule, page 2, line 23, at end insert
‘or
(c)he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.
No. 13, in schedule, page 2, line 28, leave out sub-paragraph (3).
No. 36, in schedule, page 2, line 28, leave out
‘For subsection (1)(b) substitute—
“(b)’
and insert
‘After subsection (1)(b), insert “, or
(c)’.
No. 83, in schedule, page 2, line 29, leave out from ‘material’ to end of line 31 and insert
‘might be reasonably supposed to stir up racial or religious hatred in any person who might see it.”.’.
No. 14, in schedule, page 2, line 29, leave out ‘likely’ and insert ‘intended’.
No. 16, in schedule, page 2, line 30, leave out ‘is likely to’ and insert ‘will’.
No. 37, in schedule, page 2, line 30, leave out ‘racial or’.
No. 55, in schedule, page 2, line 30, leave out ‘or religious’.
No. 49, in schedule, page 2, line 31, at end insert
‘or
(c)having regard to all the circumstances the material is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.
No. 56, in schedule, page 2, line 31, at end insert
‘or
(c)having regard to all the circumstances the material is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.
No. 72, in schedule, page 2, line 31, at end insert
‘or
(c)he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.
No. 17, in schedule, page 3, line 1, leave out sub-paragraph (3).
No. 38, in schedule, page 3, line 1, leave out
‘For subsection (1)(b) substitute—
‘(b)’
and insert
‘After subsection (1)(b), insert “, or
(c)’.
No. 27, in schedule, page 3, line 3, leave out ‘likely’ and insert ‘intended’.
No. 28, in schedule, page 3, line 4, leave out ‘is likely to’ and insert ‘will’.
No. 39, in schedule, page 3, line 4, leave out ‘racial or’.
No. 57, in schedule, page 3, line 4, leave out ‘or religious’.
No. 50, in schedule, page 3, line 5, at end insert
‘or
(c)having regard to all the performance is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.
No. 58, in schedule, page 3, line 5, at end insert
‘or
(c)having regard to all the performance is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.
No. 73, in schedule, page 3, line 5, at end insert
‘or
(c)he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.
No. 18, in schedule, page 3, line 10, leave out sub-paragraph (3).
No. 40, in schedule, page 3, line 10, leave out
‘For subsection (1)(b) substitute—
‘(b)’
and insert
‘After subsection (1)(b), insert “, or
(c)’.
No. 29, in schedule, page 3, line 11, leave out ‘likely’ and insert ‘intended’.
No. 30, in schedule, page 3, line 12, leave out ‘is likely to’ and insert ‘will’.
No. 41, in schedule, page 3, line 13, leave out ‘racial or’.
No. 59, in schedule, page 3, line 13, leave out ‘or religious’.
No. 51, in schedule, page 3, line 13, at end insert
‘or
(c)having regard to all the circumstances the recording is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.
No. 60, in schedule, page 3, line 13, at end insert
‘or
(c)having regard to all the circumstances the recording is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.
No. 74, in schedule, page 3, line 13, at end insert
‘or
(c)he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.
No. 19, in schedule, page 3, line 18, leave out sub-paragraph (3).
No. 42, in schedule, page 3, line 18, leave out
‘For subsection (1)(b) substitute—
‘(b)’
and insert
‘After subsection (1)(b), insert “, or
(c)’.
No. 43, in schedule, page 3, line 21, leave out ‘racial or’.
No. 61, in schedule, page 3, line 21, leave out ‘or religious’.
No. 52, in schedule, page 3, line 21, at end insert
‘or
(c)having regard to all the circumstances the programme is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.
No. 62, in schedule, page 3, line 21, at end insert
‘or
(c)having regard to all the circumstances the programme is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.
No. 75, in schedule, page 3, line 21, at end insert
‘or
(c)he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.
No. 20, in schedule, page 3, line 28, leave out sub-paragraph (3).
No. 21, in schedule, page 3, line 30, leave out ‘likely’ and insert ‘intended’.
No. 22, in schedule, page 3, line 31, leave out ‘is likely to’ and insert ‘will’.
No. 44, in schedule, page 3, line 31, leave out ‘racial or’.
No. 63, in schedule, page 3, line 31, leave out ‘or religious’.
No. 77, in schedule, page 3, line 31, at end insert
‘or
(c)having regard to all the circumstances the material or recording is liable to be heard or seen by any person in whom it is likely to stir up racial hatred.”.’.
No. 64, in schedule, page 3, line 31, at end insert
‘or
(c)having regard to all the circumstances the material or recording is intended to be heard or seen by any person in whom it is likely to stir up religious hatred.”.’.
No. 76, in schedule, page 3, line 31, at end insert
‘or
(c)he recklessly risks that hatred against a religious group will thereby be stirred up.”.’.

Dominic Grieve: I welcome you to the Chair, Mr. Gale, and I apologise for having assumed that permissions that were given yesterday might have been extended into today as far as our state of sartorial elegance or otherwise is concerned.
This is a very large group of amendments and has a rather daunting quality about it, but it is possible to break it down fairly readily. Some amendments were tabled by the Liberal Democrats, and I shall leave it to them to explain their position on those. Of the amendments that I tabled, there are really only three that are a novelty, because the remainder duplicate them as one goes through the text of the schedule, so the group is nothing like as terrible as it might appear at first sight.
I should add that all the amendments were tabled for probing purposes, so that we have an opportunity to consider an aspect of the schedule that has caused anxiety, which is the rewriting of the second limb of the racial hatred offence. The Committee will recollect that someone can commit the offence because they intend to incite racial hatred under the old law, or someone can commit the offence because in all the circumstances of the case it was likely that racial hatred would be incited.
With the Bill, the Government seek to change the test so that when religious and racial hatred continue together, it should come under the new test that
“having regard to all the circumstances the words, behaviour or material are ... likely to be heard or seen by any person in whom they are ... likely to stir up racial or religious hatred.”
I look forward to the Minister explaining in due course exactly how that test will operate.
I have, as I told the Committee yesterday and the day before, reservations about the test. Amendment No. 8 would simply remove sub-paragraph (3). Perhaps slightly clumsily, it is intended to suggest that we might be as well to leave things as they are—that is, with the old test under the Public Order Act 1986 and the incitement to racial hatred provision.
If we are not to do that, I invite the Committee to consider whether we should look carefully at the sentence in that sub-paragraph, whether there are ways to alter it and what impact that would have on its meaning. The first amendment that is relevant to  achieving that is amendment No. 9, which would leave out the word “likely” in line 21 and substitute “intended”, so that the text read,
“having regard to all the circumstances the words, behaviour or material are intended to be heard or seen by any person in whom they are likely to stir up racial or religious hatred.”
That would mean that intentionality would have to be shown throughout, in that in the second limb the person would have to intend the material to be seen by people whom they thought might be stirred up even if they did not intend that they would be stirred up to religious hatred as a result.
The alternative, with amendment No. 15, is to leave the first part of the sentence as it stands but leave out the second “likely”, so that the subsection would read,
“having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they (or it) will stir up racial or religious hatred.”
It is worth while for the Committee to consider carefully how those words would work in practice, which brings me back to my critique of, or anxiety about, what the Government are trying to do.
The old test, in the 1986 Act, provides for circumstances in which somebody says that they did not intend to stir up racial hatred and there is no evidence to show that they did, but the truth is that they were reckless about the impact of their words. That is how I have always understood the second limb of the existing Public Order Act offence to work. Someone can still be convicted, as the judge can tell members of the jury that even if they consider that the defendant did not intend to stir up hatred, they can look at the matter in the round and judge whether the prosecution has satisfied them that, considering all the circumstances, racial—or now religious—hatred would be stirred up.
That is a sensible test, and one with which juries and judges are enormously familiar. It asks them to apply their common sense and consider all the factors that can be taken into account. Those factors would include: where the speech, for instance, took place; its audience; whether it took place in a climate of heightened tension between communities; and whether the speaker allowed the speech to be disseminated knowing that it would be passed into areas or communities that would be inflamed by the words. The test asks the people to look at the totality of the picture.
We contrast that with the new test, which is dangerously narrow. All that has to be shown is that the words are likely to be heard by somebody
“in whom they are ... likely to stir up racial or religious hatred.”
That would put a great burden on somebody making a speech. For example, a vicar or priest who delivers a talk to a learned audience about Islam and provides a rigorous critique of Koranic teaching could find that his words are published and read by some fundamentalists with a violent bent, who use them at a public meeting to claim that people are being incited to hatred of Muslims, even though that had not been  the vicar or priest’s intention. We could reverse that situation and apply it to a Muslim imam—the denomination does not matter.
Under the Government’s new test, the jury will be prevent from considering all the surrounding circumstances, which might incline them to the view that the vicar or priest could not have imagined that the words were likely to stir up hatred. All that now has to be shown is a likelihood that it might be seen by somebody in whom it might be likely to stir up hatred. That strikes me as too narrow a test.
Amendments Nos. 9 and 15 would deal with that, but I am the first to acknowledge that they may have downsides. If we agreed to amendment No. 9, there would have to be a specific intention that the material would be seen by people in whom it was likely to stir up racial or religious hatred, which I accept might be a tighter test that what exists at present. Amendment No. 15 would allow for the recklessness element to remain but would put the burden on the prosecution of showing that it was likely that the words would be heard by people in whom they would stir up racial or religious hatred.
If I were choosing how to amend the schedule, I would prefer amendment No. 15 to amendment No. 9, because it would allow the recklessness element to remain but, on the other hand, it would put the burden on the prosecution to show that the people who were going to hear the words would be stirred up. That then raises the question of what the Crown would have to prove in bringing a case in respect of likelihood. Would they invite the jury to consider all the circumstances? Would they produce somebody who attended a public meeting who said that they thought that such words would have been likely to stir them up if they had heard them? It is not at all clear to me how people will be prosecuted, now that we have departed, as I said to the Minister, from the much simpler test that originally prevailed.
I understand, because the Minister explained it to me and also because it has been published, that the reason for the alteration is the problem of acts taking place, such as posters being taken down before anybody could read them. Although it could be argued that the posters were likely to stir up racial or religious hatred, it was impossible to show that, in all the circumstances, hatred was going to be stirred up. I sometimes think that a single case leading to an amendment may produce bad law. The Committee should reflect carefully on whether we should alter the law at all. After all, if by a happy intervention of the police, the publication of a document that is intended to stir up hatred is stopped—in the same way as a murderer whose murder is prevented escapes the full rigour of the law—there is at least an argument that we should be thankful that the person concerned need not be prosecuted.
If, on the other hand, it is felt that we should prosecute such people, where it is only by a happy chance that the words have not been disseminated, confining the offence to a specific intent might be better, or if not, amendment No. 15 might provide a fairer outcome. I should apologise to the Minister for  having been so technical; it is not an easy topic to get one’s head around, especially at 9 o’clock on a Thursday morning.
Perhaps the Minister will be able to persuade me that I am completely wrong about the matter, but I think that the impact of the changed test raises the possibility that people will be convicted unfairly. As the test that he is planning to introduce does not require intent, it strikes me that when one likelihood is piled on another, a highly speculative environment is created, which is unfair to the person concerned. That worries me. The Minister can persuade me that I am wrong, as I am open to persuasion, and if another member of the Committee can persuade me that there is another way of approaching the problem, I shall be equally happy.

Lynne Featherstone: If the hon. Member for Beaconsfield (Mr. Grieve) thought that it was daunting for him, it was certainly daunting for me. We have three sets of amendments. They are all probing amendments, and underlying them all is the fact that we do not want incitement to religious hatred in any case. However, for the sake of argument, amendments Nos. 34, 35, 38, 40 and 42 pave the way for the following three sets. We want to know exactly what is the point of the Government’s change to the likely limb in terms of race. If the point is to make prosecution more likely to be successful, surely lowering the threshold is what the Government wish to do. We have tabled amendments Nos. 35, 48, 37, 49, 39, 50, 41, 51, 43, 52, 44 and 77 for that purpose. If the Government wish to lower the threshold, why not change the word to “liable”? That would change the test from the balance of probability to risk only.
The second set of amendments applies to religion only; we are not arguing the point on grounds of race. Amendments Nos. 53 to 64 are probing amendments. They might be considered to create a higher threshold, but they deal with what the Government are seeking to do in terms of the prior limb. We are saying that in order to be guilty of an offence of incitement to religious hatred the person would at least have intended to be heard or seen.
The third set of amendments relates to the recklessness test to which the hon. Member for Beaconsfield referred. Amendments Nos. 71 to 76, taken with amendments Nos. 8, 13 and 17 to 20, are about recklessness. I am not a lawyer, as I said yesterday, but I understand that the law uses recklessness as a benchmark to judge whether the perpetrator knew what they were doing and what the likely consequences of it would be, but proceeded to do it anyway. I seek an explanation from the Minister because I fear there is likely to be a mess, and a feast for lawyers, if the Bill is enacted as drafted.

Chris Bryant: What a delight it is to see you in the Chair, Mr. Gale, despite the fact that you are replacing Mr. Amess. He would have been delightful, but perhaps not quite as delightful as you, Mr. Gale.
The hon. Member for Beaconsfield made some important points, to which I hope the Minister will respond later. I add my contribution not least because I tabled amendment No. 83. The issue of intentionality is important in deciding whether a genuine offence has been committed. Of course, in some criminal cases intentionality is perhaps much easier to determine than it is in a case of religious hatred. In a case of murder we presume that if someone stabbed a knife into a person’s chest they intended to kill that person, unless in law intentionality has been excused by virtue of insanity or someone not being in full possession of their faculties. In the case of murder, that is fairly straightforward, but in a case of incitement to racial or religious hatred it is more complex, not least because it is incitement. That may be trying to create a climate of religious hatred without doing so directly; for example, handing a piece of paper into the hands of another person, who might thereby be incited to religious or racial hatred. The direct connection between the perpetrator and the victim is tenuous.
If the bar for committing the offence is the question whether anyone may be incited to religious hatred by the words that are said, the material that is published, the play that is produced or the broadcast that is shown, that is an extremely low bar. For example, someone might be incited to religious hatred who already had a fair degree of it in their bloodstream. However, the bar would be far too high if it was a reasonable person who was being incited to religious hatred, as I would argue that you would not be able to incite any reasonable person to religious hatred. I accept that there must be a different determination of precisely how to determine whether an offence has been committed.
I tabled only one amendment, but I could have tabled an identical amendment to paragraphs 5, 6, 7, 8 and 9, which relate to the use of words, behaviour, display of written material, publishing or distributing written material, performance of a play, and showing or playing a recording or broadcasting. However, I did not do so because my amendment, like those tabled by the hon. Member for Hornsey and Wood Green (Lynne Featherstone), is a probing amendment.
 Let us take, for example, the instance of producing and performing a play. Let us say for the sake of argument that it is a production of “The Jew of Malta” by Christopher Marlowe. Most people would probably consider that when Barabas says to his daughter Abigail:
“It’s no sin to deceive a Christian;
For they themselves hold it a principle,
Faith is not to be held with heretics:
But all are heretics that are not Jews”,
that is either deeply and deliberately offensive against Christians, because Barabas is saying things that are deliberately intended to be offensive to Christians, or that the putting on of the play and putting such words into the mouth of a Jew is deeply offensive.
Likewise, when, later on in the play, Barabas says of himself:
“Is’t not too late now to turn Christian?
I have been zealous in the Jewish faith,
Hard-hearted to the poor, a covetous wretch,
That would for lucre’s sake have sold my soul”,
 people might consider, quite rightly, that putting those words into the mouth of a Jew, and implying that to be a zealous Jew is to be hard-hearted to the poor and a covetous wretch, is an incitement to religious hatred.
One could, of course, enter into lengthy exegesis of the play on what Marlowe’s intention was, what the intention of the production was, and whether one presented Barabas in a supportive and sympathetic light in a particular production that was being put on. However, I note that although Judaism is protected under current law, no prosecutions have been advanced against any theatre company that has produced “The Jew of Malta”, of which I have seen at least five productions in the past 20 years. We can therefore be fairly sure that, if we remain with the intentionality clause, there are unlikely to be prosecutions against such plays.
Similarly, in the 1980s, a production of a play called “England, My Own”, by Peter Terson, was put on by the National Youth theatre, in which I played a very small bit part—[Interruption.] The play was contemporary; it was about the National Front and the many attacks that there had been in various parts of the country, particularly on Afro-Caribbean communities. One of the characters in the play was supposedly the leader of the National Front. It was an interesting production.
There were about 120 of us in the production—so hon. Members can see how small a bit part I had—and on one of the nights, while we were standing on stage during one of the various songs in the production, which were mostly patriotic old British hymns, the whole of the audience of about 450 stood up, took off their jackets and showed their brown shirts and their sand-brown belts, and proceeded to march on to the stage. There was then a very big fight. The next night we were attacked by gay lib, so it was an interesting week. [Interruption.] Formative years, indeed. The important point is that many of the speeches in the play by the character playing the leader of the National Front were deeply offensive. They had to be deeply offensive to make the point of the play, which was to expose some of the outrages committed by the National Front—which is now the British National party.
If someone were to use precisely those same speeches on a street corner, I am sure that they could be arrested on the grounds of incitement to racial hatred. Saying such things on stage as a fictional character, albeit a fictional character very closely based on some people that we might all have been able to name in the 1970s, was different. No one took out any form of prosecution against the play, and rightly so, because the moral of the play—it was a fairly moralistic play—was that the National Front and racial hatred were wrong.
Let us move forward to today. Let us say, for instance, that the National Theatre wanted to put on a play that was about incitement to religious hatred, and in the play it chose to have groups of Christians and Muslims, or Catholics and Protestants—perhaps it was about sectarianism. There might be characters on stage who made ferocious attacks which, if we heard them in a meeting in the east end of London or in a Catholic part of Glasgow, we would consider to be a deliberate attempt to incite religious hatred.
Of course, if the play were able to explore that issue it would have to present those characters on stage; again, these might be fictional characters. The context within which those words are spoken on a theatre stage is different from the context in which they might be spoken in the east end outside a mosque or in a Catholic area in the west end of Glasgow. It would be difficult to introduce an exemption for plays and works of fiction. Everyone would then argue that something was meant to be a play and a work of fiction. I cannot see that there is a way that would help us.
We should want to help our theatre industry because one of the things of which we have been rightly proud over many centuries is that Britain has been good at exposing, on stage, some of the great moral issues of the age. Islamophobia is undoubtedly one of the moral issues of this age. I cannot see how, without some intentionality being introduced into the Bill, we have a means of allowing the National Theatre to put on a play about incitement to religious hatred without being caught by the Bill.
My amendment would allow for a slightly different grammatical reading by turning from the active into the passive. Instead of the present wording the sub-paragraph would read
“might be reasonably supposed to stir up racial or religious hatred in any person who might see it.”
I recognise that that still falls somewhat foul of my worry that “any person” gives us a very low bar. This is still a probing amendment, but I urge the Minister to look for some means of reintroducing an element of intentionality into the question whether someone has committed an offence under the Bill.

Gary Streeter: I rise to support the hon. Member for Rhondda (Chris Bryant). His amendment may not be perfect and the phrase “reasonably supposed” could perhaps be improved, but I support his argument that some kind of intentionality needs to be included in the likely limb. I am more concerned about the likely limb than about any other part of the Bill. With modern technology one does not know who will hear or read one’s remarks.
I met with a group of church leaders yesterday who told me that their sermons are put on the web. Although they might know who their congregation is on a Sunday or midweek service, they do not know who will read their sermons on the web. We all have to be careful with our words when we know who our audience is. We do that daily in our constituencies. One party, which I will not name, says one thing to one audience and something else to another. [Laughter.] I did not identify that party. We are used to that. What happens when one does not know who one’s audience is?
What kind of country do I want to live in? I want to live in a country where people are free to have their own religious belief and to express that belief. I want church leaders, imams and other religious leaders to feel free to explain, interpret and preach their own faith without fear of the thought police or people around the corner who will arrest them for what they have said. If their words are placed on the web and they do not know who will read them, I am worried that we will have some very nasty experiences.
I know that this is a probing amendment. I suspect that the likely limb will be severely scrutinised in another place. I suspect that the Bill will not survive in its present form. The Minister is a reasonable man who wants a good outcome for the Bill and is introducing it for all the right reasons. I urge him to reflect on this debate and come forward at the appropriate time with some measure of intentionality in the second part of the test. I am looking him in the face now; I think that he is going to do it. I am optimistic that the Minister is listening and will respond.

Paul Goggins: I am grateful for all hon. Members’ comments, particularly those made by the hon. Member for South-West Devon (Mr. Streeter). I continue to listen, as always, in Committee and in the Chamber, and I am well aware that the Bill has still some way to go before it reaches the statute book, but I remain confident that it will. The hon. Member for Beaconsfield is right to say that this is technical territory. It is good to see you, Mr. Gale, unexpectedly in the Chair this morning. On seeing the large group of amendments, you must have wondered what was coming up. It is a bit like a jigsaw puzzle: once one sees the pattern, it is rather less daunting than it first appears.
 Broadly, in combination, the amendments would have three results. One result is to set a higher test than the current likely limb test, which would undermine the application of the likely limb. I want to spend some time describing the likely limb and the reasons why the Government have introduced a change to it. The second impact would be an inconsistency between racial hatred and religious hatred. We debated that at length in earlier sittings, and we have discussed how that would mean that Jews and Sikhs were given different protection from Muslims and Christians, which I think the Committee increasingly sees as something to avoid.

Dominic Grieve: The fact that we seem to be having that problem might be a good reason for the Government to pause and reflect on the difficulties that they face in trying to introduce the religious element—for the reason that Jews and Sikhs are already covered. I draw the opposite conclusion from the Minister, which highlights the underlying flaw in trying to equate religious hatred and racial hatred.

Paul Goggins: No doubt that will continue to be a difference between us, but part of the Government’s motivation in bringing forward the legislation is to produce a level playing field for different religious groups. One group of amendments, which I shall come to shortly, would introduce a lower test than the current likely limb test. I assume that the Committee would not want a test lower than the current one.
I shall explain to the Committee why the Government wish to make the changes to the likely limb. I refer, first, to section 18(1) of the Public Order Act 1986, which states:
“A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive, or insulting is guilty of an offence if
(a) he intends thereby to stir up racial hatred”.
I do not think that there is any argument that, as a first preference, we would always try to prove—and the court would judge—whether there was a clear intention to stir up racial hatred. However, we accept that it is difficult to prove whether someone has intended to do something, which is why we introduced the second leg, or the likely limb, of the offence.
The Public Order Act says that an offence is committed if, having
“regard to all the circumstances ... racial or religious hatred”
is likely to be stirred up thereby. There is a concern and a risk, referred to by the hon. Member for Beaconsfield, that the court may interpret the likely limb as requiring proof that threatening, abusive, insulting words or behaviour were seen by someone in whom hatred is likely to be stirred up. The burden of proof becomes whether or not the words or behaviour were actually seen or heard.
As I explained in previous sittings, if somebody has produced material or spoken words that are likely to whip up hatred on the grounds of religious belief, the fact that a decent person saw the poster or heard the words and reported that to the police and/or had the posters taken down should not excuse the person who put the posters up in the first place. If their actions were likely to lead to religious hatred being stirred up, they should not be allowed to get off scot-free, and nor should they get off if it was the police who first saw the poster and took it down. They will be guilty of an offence in putting up those posters whether or not they were seen by someone in whom hatred was likely to be stirred up. That is why we have introduced the changes. The test is not lower—hatred will still be the high test that has to be proved—but we wanted to take account of the fact that we do not want people to get off scot-free just because someone has not seen their poster or heard their words.
Our changes must also be seen in the context of section 18(5) of the Public Order Act. I hope that this will offer some reassurance, not least to the hon. Member for South-West Devon, who rightly argued that there must be some degree of intentionality behind the actions. Subsection (5) says that
“a person who is not shown to have intended to stir up racial hatred”—
someone who has not been proven to have committed the first limb of the offence—
“is not guilty of an offence under this section if he did not intend his words or behaviour or the written material to be, and was not aware that it might be, threatening abusive or insulting.”
Under the 1986 Act, someone has to intend that their behaviour or words will be threatening, abusive or insulting, or at least be aware that they might be.

Dominic Grieve: The trouble is that that takes us back to yesterday’s argument about what is insulting. I referred yesterday to a document, which I have now had photocopied, entitled “The Muslim Menace to Britain: 33 Questions about Islam Answered”. Without the slightest doubt, it contains material that is insulting to Muslims. However, I find it difficult to see how, in certain circumstances of rational discussion, insulting language may not be used. Although that defence exists, it does not seem to be sufficient to cover the problem that we are likely to face: when language or words are delivered to a totally different audience from that which the speaker reasonably expected.

Paul Goggins: I have never argued that these matters are easy to judge. I look forward to reading the hon. Gentleman’s e-mail when it is circulated to Committee members. In the end, it is for the court to determine whether someone’s behaviour was threatening, abusive or insulting. The important point about subsection (5) is that it must be proved, even on the likely limb of the offence, that there was a degree of intentionality and awareness in the person who used the words or published the material that their behaviour was or might be threatening, abusive or insulting. I hope that it offers some reassurance to the Committee that the degree of intentionality—the mental element of the offence—has to be there in both limbs of the offence.
Let me deal with the amendments that set a higher test. The hon. Member for Beaconsfield referred to amendment No. 9 and those related to it, which would replace “likely” with “intended”. It goes without saying that including the word “intended” would virtually reproduce in the second limb the same test as is in the first. As I have explained, the second limb requires the mental element—the intention or awareness that the behaviour was threatening, abusive or insulting.
The hon. Gentleman stated a preference for amendment No. 15, which would replace the word “likely” with “will” be stirred up. There is such a degree of certainty about the word “will” that one would almost expect that the prosecution would have to produce in court someone who would admit that they were stirred to hatred by the action in question. That is highly unlikely, and the amendment would again set a level of test that is almost as high, if not as high, as the first limb. I understand why he does that—partly to probe and to encourage the debate and partly because he has a tendency to think that we should have only one limb to the offence. He would be the first to acknowledge that it is difficult to prove intention, and  that is why we have included the second limb, even with subsection (5) meaning that there has to be a strong mental element.
I turn to the group of amendments that would give us a lower test; I hope that I can persuade colleagues on both sides of the Committee that the proposal should be dropped. The group includes amendment No. 48, which would replace “likely” with “liable”. I draw the Committee’s attention to the case of Parkin v. Norman, which determined that the word “likely” in practice means probable, not liable. So to replace “likely” with “liable” would produce a lower test. I hope that offers some reassurance to the Committee. This is a small and quite technical Bill and the meaning of words matters a lot. When we say likely, we mean probable, and that is a very high test.
The hon. Member for Orkney and Shetland (Mr. Carmichael) tabled amendments that would introduce the word “recklessly”. Again, that presents us with a test that is too high. It is for the court to make an objective judgment about whether, in all the circumstances, racial or religious hatred was likely to be stirred up. Whether someone was reckless in their actions in doing so is immaterial to whether they were likely to stir up the racial or religious hatred. We leave it to the jury to decide whether that happened. The hon. Gentleman mentioned the possibility of unfair convictions. That is why we have our appeal system. If there is an unfair conviction, the defendant can appeal and the case can be looked at again. That is an additional safeguard in our judicial system, which should offer the Committee further reassurance.
I come finally to amendment No. 83, which was tabled by my hon. Friend the Member for Rhondda. I find it difficult to imagine my hon. Friend playing a small bit part in anything. Clearly, there was a large cast—only slightly smaller than the audience. I listened carefully to his comments. The intention behind his amendment is good, but I am still not convinced by his argument. As I explained, there has to be that mental element even to prove the likely limb. Moreover, it has to be proved that that was the case in all the circumstances. In all the circumstances in the example that he gave means in the theatre in the context of the play—yes, in the context of the audience that was invited to watch the play. Those are all the circumstances about which the court must make a judgment when considering the case.
 I will continue to mull over my hon. Friend’s points. The Home Secretary made it clear on Second Reading that if we can find ways to improve the Bill and offer reassurance in the way that he sought to offer it, we would consider that carefully. We would not want to do anything that altered the substance, but if we could do something that might reassure hon. Members and people outside the House, we would consider it. There has to be that mental element behind the likely limb. The judgment is made in all the circumstances. All the circumstances of theatrical production are evident for all to understand.

Charles Walker: Will the Minister give way on that point?
9.45 am

Paul Goggins: I am two words away from the end of my speech, but I will.

Charles Walker: Very briefly on the point made by the hon. Member for Rhondda, let us imagine that the play is going on and a complaint is made about it. The police investigate the complaint and decide to ask the theatre to stop putting on that play while they do so. The complaint is then investigated; the play does not happen; and six months later, the Attorney-General decides that there is no case to answer. That would not have helped the hon. Gentleman and his theatre troupe, who would have had their production stopped mid-season by the police. Is that not perhaps a danger?

Paul Goggins: The hon. Gentleman makes a fair point, on which I shall reflect. The police will, of course, have experience of such situations, where something being produced over time on a regular basis may or may not be an offence, and they need to determine how to proceed. I shall think carefully about what the hon. Gentleman said, and will write to him with some thoughts on the matter.
The hon. Gentleman anticipated the end of my speech, all bar two words, and I have forgotten what those two words were.

Dominic Grieve: I am grateful to the Minister for his response. I was aware that he had been preparing a very detailed response to the points likely to be raised in this debate, and he has certainly succeeded in doing that. I am sympathetic to the point that he made when he highlighted the fact that the phrase “liable to” is a lesser test than “likely to”, which is one of the reasons why I did not seek to go down that road.
I hope that the debate has highlighted that there are some real concerns. Part of the problem—I am sorry to labour the point a little—is that the Minister again argued that it is not possible to make a distinction in the tests between religious and racial hatred, because that would defeat the object of the Bill, which was to introduce for other religions a form of protection identical to that currently enjoyed by Jews and Sikhs. If that is the Government’s approach, we are stuck in a rut, because—this point was made earlier—Jews and Sikhs are protected on the basis of their race. I can think of no instance in which an attack on religious beliefs has been the subject matter of a prosecution. The Minister may tell me that I am wrong about that, but that is my understanding of the matter.
I believe that race and religion are very different things. One reason that those who drafted the Public Order Act were happy to include a likely limb in all the circumstances as well as an intent was that, picking up the expression used by the hon. Member for Islington, South and Finsbury (Ms Thornberry) during the debate yesterday, reasonable people considering race will readily come to the conclusion that language that is likely to be inflammatory or to encourage racial hatred can have no justification, because racial characteristics are irrelevant to the nature, belief or behaviour of a person. That is in sharp contrast to  religious belief, because religion is an underlying philosophical outlook and belief system that colours the way people behave towards others. I therefore think that the Government face an immediate problem in this area. That is why I am so reluctant to go down a road that allows criminalisation on the basis of the likelihood of words being used in the context of stirring up religious hatred.
However, mindful of what the Government are trying to achieve—and even if I disagree with the principle, I am trying to be helpful in this Committee—I still believe that the test as the Government have produced it, which will apply equally to race and religious hatred, is incorrect. It raises a real risk that there will be prosecutions of individuals which are perceived to be unfair, in which words that have been used in one context have been used again in other contexts by others and, in those other contexts, it has been perfectly possible to say that there was a likelihood that religious hatred would be stirred up. Of course, the Minister can then fall back on the second stage: that the Attorney-General will not prosecute in such cases. However, Parliament makes bad law if it leaves it to the discretion of the Attorney-General to cherry-pick the sorts of things that he intends to prosecute.
One of my fears about the Bill is that it will rapidly be perceived that some groups may be targeted for saying certain things, whereas other people saying identical things in respect of other groups will not be targeted at all. That is a real problem. As someone rightly put it, can one imagine “Jerry Springer—The Opera” being put on in this country if it had had a Muslim theme? Would it not have provoked a public order problem, which, in the context of being insulting to Christians, it did not? These issues of unfairness will corrosively undermine the operation of the legislation. That worries me, so I would be happier if it were possible to adjust the test.

Chris Bryant: In fact, “Jerry Springer—The Opera” led to a series of death threats to various people involved in organising it, so the situation is not quite as clear-cut as the hon. Gentleman suggests. I shall correct slightly what I think he understands to be the view of many Government Members when he draws a distinction between race and religion. I think that most Government Members believe not only that it is unreasonable to believe that a person is a lesser human being because of the colour of their skin, race or ethnicity, but that, even though one might think another person to be foolish, misguided or vacuous in their religious faith, it would none the less be wrong to assume that the person who holds that set of religious views is by that fact a lesser human being. That is the nub of the issue.

Dominic Grieve: But the Bill is not about being a lesser human being; it is about whether someone is entitled to hate people. If someone says, “I hate you because you’re black”, that is a statement of the utmost irrationality. If I say, “I hate you because you’re a Christian”, that statement has a foundation on an ability to present a perfectly rational argument. The  hon. Member for Islington, South and Finsbury suggested yesterday—I think that this is the new orthodoxy—that in modern society people are not allowed to hate others, irrespective of who they might be. We should not hate paedophiles or mass murderers.

Chris Bryant: Or Tories.

Dominic Grieve: Indeed, or members of the Labour party.

Chris Bryant: Or lawyers.

Dominic Grieve: Lawyers have been hated for generations. I have to say to the hon. Gentleman that if we succeed in creating a society in which lawyers are no longer hated, we shall be in a paradise.
In fairness to the hon. Member for Islington, South and Finsbury, the view that I describe is her view; I do not think that the Government have ever expressed that view during the passage of the Bill. The hon. Lady’s view has an internal consistency to it. Although I disagree with it and think that it produces a totalitarian state, it is perfectly rational. The Minister, however, has never sought to widen the argument that what we must do is prevent expressions of hatred generally; he says that the measure is to meet a particular problem. We are therefore entitled to consider whether we should have different tests for religion and race.

Paul Goggins: I am grateful to the hon. Gentleman for clarifying my remarks, because he is entirely right. To clarify them further, I can tell him that the Bill would not prevent him from hating whomsoever, on grounds including religious belief. There is no law in any land that could prevent him from having those feelings towards another person because of their religious belief. What the new offence does is prevent him from behaving in a way that incites in others hatred of people because of their religious belief. That is the narrow offence that we are introducing. It does not prevent him from hating; it prevents him from inciting hatred in others.

Dominic Grieve: Incitement to hatred is only encouraging other people to share one’s own view, which, in a free society, is a matter of open communication of views. That is what we are talking about and, to that extent, there is very little difference in nature between my having a private hatred and my encouraging another member of the Committee to share that hatred because I think that it is justified. We have to face the fact that on this issue there is a distinction between the two sides of the Committee, possibly between the two sides of the House and possibly between the two Houses of Parliament. Society cannot be controlled in the fashion that the Minister describes. I do not want to take more of the Committee’s time, so I shall not press the amendments.
I ask the Minister to mull over what has been said in the debate; the comments made by the hon. Member for Rhondda had considerable force. I cannot help  thinking that there is a better way of wording the proposal. It strikes me as being a very tight test. It crossed my mind that the words “in all the circumstances” could be added at the end of new paragraph (b), although I did not table an amendment to that effect. I merely make that suggestion. It would be a second set of “all the circumstances”. The wording in the Bill as drafted gives the impression that “all the circumstances” applies only to the first part of the proposal. My suggestion is that it should state,
“having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they are (or it is) likely to stir up racial or religious hatred in all the circumstances”.
The Minister may tell me that that is unnecessary, but I am not 100 per cent. sure that the first “all the circumstances” does not refer only to the first part of the paragraph. That may not be what the Government intend, and the Minister might want to reply to me in writing.

Paul Goggins: Given that what the hon. Gentleman suggests was not tabled as an amendment, he will forgive me for not having thought about it too deeply. However, I will think about it and communicate my conclusions to him.

Dominic Grieve: That might go some way towards making it clear that the jury still has to look at the total picture before concluding that somebody is guilty, simply because of the words “likely to be seen or heard” and “likely to stir up religious hatred” . I will not take up more of the Committee’s time. I am grateful to the Minister for providing such a full answer. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 12, in schedule, page 2, line 23, at end insert—
‘(4)After subsection (1) insert—
“(1A)No word or behaviour, or display of any written material shall be regarded as threatening, abusive or insulting if it solely seeks to impart information as to the religious belief or lack of belief of the maker.”.’.
This is a probing amendment; it has some imperfections, which I can see for myself. It is designed to prompt the possibility of debate on ensuring that expressions of religious view are protected. As we know from the famous, or infamous, Hammond case, expressions of religious view and belief are already being curtailed in the public forum of street preaching by the existing law.
I mentioned on Second Reading that in my constituency a street preacher had been told by the police, “You can say what you like, but you can’t tell people that they will go to hell if they don’t share your views.” I wrote to the chief constable about that but I have not had an answer. Perhaps he is waiting for the outcome of this Bill before he tries to deal with my letter. It seemed to me that if one believes that other people will be damned if they do not share one’s views, one is under an imperative to tell them so.

Chris Bryant: Seventh Day Adventists want to keep heaven for themselves.

Dominic Grieve: The hon. Gentleman highlights the fact that we keep talking in the context of mainstream religions, but it is extraordinary how complex some sects can be. Some would say that if one believes in original sin and predestination it does not matter what one preaches because where people are going has already been fore-ordained. That is a complex area of theology on which people happily killed each other in the 16th century.
My question to the Minister is what safeguards, apart from the Attorney-General’s discretion, could be introduced to ensure that people are protected when they are expressing their views and beliefs. Should something not be included in the Bill to provide reassurance that people’s right to express their religious beliefs or lack of them will not be reduced?

Chris Bryant: I shall be brief, as I think that this is the hon. Gentleman’s weakest amendment to date. For a start, I was always taught at school that it was redundant to say, “I believe that the sky is blue”. If I say that the sky is blue, I clearly believe that it is blue. Therefore, the concept of faith in the amendment is fallacious and redundant. I also wonder whether “the maker” at the end of the amendment should have a capital T and a capital M, as I am not sure what is being referred to.
As we saw from the incidences of confessions of faith yesterday—the Westminster confession and the 39 articles to which the hon. Gentleman referred—it is remarkably difficult to differentiate between an article of faith that is merely imparting one’s belief and one that has a degree of polemic attached. For instance, views about transubstantiation in the 16th and 17th centuries were also views about the power of the Pope to determine theology and the governor of this land, so blasphemous libel and seditious libel were entwined. Therefore, the amendment falls by theology, let alone by any other term.

Paul Goggins: Clearly, the hon. Member for Beaconsfield is probing. He has acknowledged some of the weaknesses in the amendment, which is designed to exempt people who stir up religious hatred when it is an expression of their personal religious belief.
There is a perversity in the amendment, to which I want to draw the Committee’s attention, whereby someone could in effect mount a defence that they believe that they are bound to incite religious hatred. I remind the Committee that our definition of religion requires cogency, seriousness, cohesion, importance and beliefs that are worthy of respect in a democratic society and not incompatible with human dignity. It is hard to square that definition of religion with somebody holding the necessity to preach religious hatred as a tenet of their faith.

Dominic Grieve: Perhaps we should solve the problem and say there is no longer any religion defined in this country at all. After all, I read out to the Committee yesterday some scripture and Koranic texts that might fit with some difficulty with the Minister’s last point.  This is one of the problems that we face; we imagine religion to be all inclusive and cuddly, and I do not think that it is.

Paul Goggins: I made it clear that I do not think religion is cuddly either, although I am content to leave it to a court to determine whether a particular religion can be so described.
I want also to draw the hon. Gentleman’s attention to the case of Birdwood, which is particularly relevant. That made it clear that a belief that what one has said is true cannot be a defence under the race hatred legislation, and in my view that would read across into the extension to religious hatred. The Home Secretary made it absolutely clear on Second Reading and elsewhere that it is not an offence, and will not be an offence, for people to assert their belief or quote openly and robustly from scripture. All of that will continue, and indeed that has happened through the 20 years in which the race hate legislation has been in operation.

Gary Streeter: In which case, why will the Minister not put that in the Bill and reassure a lot of faith community leaders in this country?

Paul Goggins: I understand the hon. Gentleman’s motive, and I hope that he understands and believes me when I say that I am thinking and reflecting on these things all the time. My concern is that we do not introduce loopholes that people could use to get around the law. That is one of the reasons why we have brought this legislation forward—to close a loophole that some extremists use as a way of whipping up hatred against people because they know that it cannot be caught by the law. As much as I want to reassure people, if in so doing I overstepped the mark in amending the Bill, I would be creating a loophole that would enable people to go on inciting hatred. I do not want that to happen.

Philip Davies: Does the Minister not appreciate that, in order to close a loophole that allows a particular case to fall through the net, he may be preventing an awful lot of people from feeling able to speak freely? That is much more negative than seeking to close one loophole here or there.

Paul Goggins: There is almost a meeting of minds. I hope so, and shall continue to look for it. I acknowledge what the hon. Gentleman is saying; hon. Members have spoken about the chilling effect that the legislation might have and people’s concerns about not being able to preach openly, to proselytise or to express clear opinions about other’s beliefs. I hear and understand those concerns, but my responsibility is to ensure that we have a piece of legislation that works and does not create further loopholes that extremists can exploit.
Where can the minds meet? I think that they can meet on the guidance that will be issued once the legislation is on the statute book. It is always important that guidance to the police, the Crown Prosecution Service and others is clear on how a offence will operate, and particularly important with legislation such as this. I want to draw up guidance  that is inclusive. We want to encourage stakeholders, including religious groups and others, to express their concerns and engage in a dialogue with us as we develop the guidance before its publication.
A lot of the myths that have grown up around the Bill can be scotched if we do that openly. If we do that successfully, the legislation will be tight, will work, have no loopholes, and will be accompanied by guidance that will reassure people that we are looking for a very high test, and that we seek to eliminate the incitement of hatred on the grounds of religious belief or race. It is not to suppress people’s ability to speak openly about their religious beliefs or other views. If the law is clear and tight, and if the guidance is issued in that inclusive way, we can achieve a great deal.

Dominic Grieve: I certainly was aware that there were flaws in the drafting of the amendment. One problem has been tabling amendments in the very short time between sittings. Especially if they have been passed to one and one thinks that they might merit consideration, it is better to put them in than keep them out. That was the case with this amendment. The best place to return to the discussion is probably on new clause 1, the wording of which I am rather happier with—although again, there may be some serious difficulties with it. However, it is tighter, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Further consideration adjourned.—[Mr. Alan Campbell.]
Adjourned accordingly at nine minutes past Ten o’clock till this day at One o’clock.